The NFIB Legal Foundation has previously supported John Rapanos, a small businessman who was criminally prosecuted and convicted for developing wetlands found on his land. The Legal Foundation joined, among others, the National Association of Home Builders and the National Association of Realtors, in filing an amicus brief in U.S. v. Rapanos, asking the Sixth Circuit Court of Appeals to affirm a trial court decision vacating Rapanos' conviction for "filling" property located 20 miles away from any navigable water. The 6th Circuit upheld the criminal conviction and last year, the Supreme Court denied review in Rapanos' appeal of his criminal conviction.

The Supreme Court has now agreed to hear Rapanos' appeal in his civil case, in which the government seeks millions of dollars in fines. At issue is whether the federal government can assert jurisdiction over wetlands that may be part of a drainage area or tributary system but do not actually abut the "navigable waters" to which the Clean Water Act refers. This case is important not just to Rapanos but to the more than 20,000 NFIB members that own real property and construction firms.

Status: Decided. Amicus brief filed in support of Rapanos, Dec. 5, 2005. Oral argument held Feb. 21, 2006. On June 19, 2006, the Court rejected the Corps' application of the Clean Water Act to the parties and vacated the 6th Circuit judgments. The case was remanded for further consideration.